Bronx Overall Economic Development Corp. v. DNA Automotive Corp.

127 A.D.3d 497, 4 N.Y.S.3d 529

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 2015
• Docket: 14757 22288/12
• Status: Published

Opinion

Order, Supreme Court, Bronx County (John A. Barone, J.), entered April 14, 2014, which denied plaintiffs motion for summary judgment against defendants DNA Automotive Corp. and Gary Gartenberg, and for a default judgment against defendant John Hazlitt, unanimously reversed, on the law, with costs, the motion granted, and the matter remanded for further proceedings.

In this action to enforce two promissory notes, a loan and security agreement, and a written guaranty (collectively the documents), plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by submitting, among other things, the documents and evidence that defendants failed to perform under them (see 4 USS LLC v DSW MS LLC, 120 AD3d 1049, 1051 [1st Dept 2014]; see also Zyskind v FaceCake Mktg. Tech., Inc., 101 AD3d 550, 551 [1st Dept 2012]).

In opposition, defendants failed to raise a triable issue of fact. Defendants’ affirmative defenses are barred by the express terms of the guaranty (see Citibank v Plapinger, 66 NY2d 90, 92 [1985]; see also Red Tulip, LLC v Neiva, 44 AD3d 204, 209-210 [1st Dept 2007], lv dismissed 10 NY3d 741 [2008]).

Concur — Tom, J.P., Sweeny, Renwick and Amdrias, JJ.